solving The Chronological Paradox In Customary International Law: A Hartian Approach


Authors
David Lefkowitz
University of Richmond
Abstract
As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms
Keywords No keywords specified (fix it)
Categories (categorize this paper)
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 38,984
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

No references found.

Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Legal Sources, the Rule of Recognition, and Customary Law.Grant Lamond - 2014 - American Journal of Jurisprudence 59 (2):25-48.
The Status of Precautionary Principle: Moving Towards the Rule of Customary Law.Agnė Širinskienė - 2009 - Jurisprudencija: Mokslo darbu žurnalas 118 (4):349-364.
The Publicity "Defect" of Customary Law.Varun Gauri - 2012 - In Brian Z. Tamanaha, Caroline Mary Sage & Michael J. V. Woolcock (eds.), Legal Pluralism and Development: Scholars and Practitioners in Dialogue. Cambridge University Press.
Is the Rule of Recognition Really a Conventional Rule?Julie Dickson - 2007 - Oxford Journal of Legal Studies 27 (3):373-402.
Kelsen, Quietism, and the Rule of Recognition.Michael Steven Green - 2008 - In Matthew D. Adler & Kenneth E. Himma (eds.), THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION. Oxford University Press.
In Defense of Hart.Matthew H. Kramer - 2013 - In Wil Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law. Oxford University Press. pp. 22.
Wittgenstein's Paradox of Ordinary Language.Barry Stocker - 2000 - Essays in Philosophy 1 (2):1-14.

Analytics

Added to PP index
2015-01-22

Total views
0

Recent downloads (6 months)
0

How can I increase my downloads?

Monthly downloads

Sorry, there are not enough data points to plot this chart.

My notes

Sign in to use this feature